My Prediction in the Shelby County Case

We are getting close to a decision in the Supreme Court on Shelby County, Alabama’s challenge to section 5 of the Voting Rights Act. This is the part of the VRA which requires jurisdictions (mostly, but not only in the South) with a history of discrimination in voting on the basis of race to get permission from the federal government (either the Department of Justice or a three-judge court in DC) before making any changes in voting rules and procedures. The changes can be as large as a redistricting plan for 10 years, and as small as moving a polling place across the street. Shelby County claims that the law now exceeds congressional power over the states, because there is not enough evidence of intentional state discrimination on the basis of race to justify this interference with state’s rights. This federalism argument notes how the South has changed—the question is whether it has changed enough for the Supreme Court to hold that an Act, which was once constitutional is no longer constitutional thanks to changed circumstances.

I predicted back in 2009 in the NAMUDNO case that the Supreme Court would strike down the Act on these federalism grounds. But the Court did not; instead it engaged in an act of mangled statutory interpretation to avoid deciding the constitutional issue.  But the Court’s opinion was a shot across the bow to Congress, telling them to do something to fix the potential constitutional problem. In the interim, Congress has done nothing.

I predict that this time around the Court will decide that it need not reach the question whether a preclearance requirement is constitutional assuming that Congress picks the right jurisdictions to target. But that the way in which Congress chose the current states and jurisdictions which are targeted (based on a formula related to turnout going back to the 1960s and 1970s) is unconstitutional.  I expect this position to garner 5 votes and a strong dissent from 4 Justices. I expect the majority to try to downplay its decision as merely striking the coverage formula and not section 5 itself, but I don’t expect fairminded observers to buy it: because of intense polarization in Congress and controversy over the DOJ itself, I cannot imagine the current Congress passing a new set of jurisdictions subject to Section 5 preclearance.  This will mean that Section 5 will effectively be dead.  (I do believe that such a ruling may create an opening for a different type of voting rights legislation to emerge from Congress. Here’s a series I organized for Reuters Opinion on what may come after Section 5.)

As I said above, I was wrong about what the Court was going to do last time, and I could be wrong again.  But this is what I’m expecting some time in the next few weeks.

UPDATE: I had forgotten about Linda Greenhouse’s comments along the same lines at the bottom of this column.

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